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Specious Free Exercise Arguments Can’t Hide the War on Contraception

[ 102 ] February 21, 2012 |

There are a number of problems with Michael Gerson’s column in the Washington Post arguing that the Obama administration’s application of contraceptive coverage requirements to institutions providing secular services but affiliated with religious groups was an “epic political blunder.” For one thing, the entire premise of the column is wrong. The new regulations are in fact extremely popular, and Roman Catholics support the contraception coverage requirements by the same 2-to-1 majority as the population as a whole. In addition, Gerson alleges that the regulations show that Obama is “willing to trifle with the constitutional rights of religious people.”

The argument that the contraceptive coverage requirements violate the Constitution is not unique to Gerson. Republican politicians — led by Senate Minority Leader Mitch McConnell — and pundits alike have argued that the new regulations violate the Free Exercise clause of the First Amendment. But these arguments are specious. Nothing like the reading of the First Amendment invented to oppose the contraception coverage requirements has ever been adopted by the Supreme Court, for the obvious reason that it would be completely unworkable.

Under existing law, a constitutional challenge to the contraception provision wouldn’t even rise to the level of being frivolous. In the 1990 case Oregon v. Smith, in an opinion written by that infamous radical leftist Antonin Scalia, the Supreme Court held that neutral, generally applicable laws are constitutional even if they incidentally burden religious practice. Only if a law intentionally targets a religious practice does it run afoul of the Free Exercise clause. “We have never held,” wrote Scalia, “that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” The requirement that insurance plans cover contraception is a valid secular objective that is not directed at any religious practice per se, and hence is plainly constitutional. If the mandate applied to religious institutions this might be a constitutional problem, but religious institutions themselves are excluded; only religiously-affiliated institutions that serve secular purposes and hire people of multiple faiths are affected.

I believe that Scalia’s logic in Smith is sound, but I would be the last person to argue that everyone should defer to his interpretations of the Constitution, and Smith has certainly always had its share of critics. After Smith, a strange-bedfellows coalition of evangelical conservatives and civil libertarians pushed for the passage of the Religious Freedom Restoration Act, which among other things instructed the Court to apply the more restrictive “Sherbert test” that the Court effectively replaced in Smith. The Court struck down that provision of RFRA, but for the sake of argument let’s assume that Sherbert was correct and Smith was wrong, and that the former should be applied. Would the mandate be unconstitutional? Not even close. I believe that the mandate could easily be defended as narrowly tailored to advance a compelling state interest, especially since religious institutions themselves are not covered by the mandate. But it would not be necessary to even answer that question, because the Sherbert test requires that a law represent a “substantial burden” on a person’s ability to act on a sincere religious belief. Such a burden is noticeably absent here. The religiously-affiliated institutions are not even required to provide the insurance directly. As for Catholic employees, most lay Catholics do not follow the Church’s teachings on contraception; on such employees there is no burden at all. Even more importantly, the regulation does not require any individual to use contraception contrary to their religious beliefs, or even to pay more so that they can be covered. Even under a more restrictive standard than the Court is currently applying, in other words, the contraception regulations are plainly constitutional.

For these reasons, Ed Whelan’s arguments based on RFRA are also wrong, because the required “burden” isn’t there. Religious institutions have been reasonably accommodated, subject to regulation only when performing secular functions with taxpayer money for clients and with employees of multiple faiths. And individuals are not burdened at all.

The Court has not developed a more expansive interpretation of the First Amendment for the very good reason that this would immediately lead to absurd results. Can Quakers be exempt from paying federal taxes as long as the United States maintains a standing army? Should the Amish be exempt from paying Social Security taxes? Are bans on plural marriage unconstitutional because they burden the religious practices of some Mormons? A society cannot function if every religious group or individual is a conscience unto themselves, entitled to an exception to any valid general law that conflicts with their religious beliefs. And unless such a transparently useless interpretation is applied, there is no question that the requirement that medical insurance cover contraception is constitutional.

It is certainly understandable that Republicans would like to frame their opposition to the regulations as an issue of “religious freedom,” given how overwhelmingly unpopular their war on contraceptive access is. But these arguments are unserious, and the public understands this perfectly well.

Comments (102)

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  1. MAJeff says:

    The “religious freedom” claim is the theocrats’ new strategy to hide their supremacist goals. It’s also present in the marriage equality debates, with Catholic Charities claiming a “religious liberty” right to state money with an inherent religious exemption to providing services to people they don’t like, and civil clerks claiming that they don’t have to do their job and provide services to eligible citizens because to do so would violate their “religious liberty.”

  2. actor212 says:

    If religious institutions want to deal in the secular world, then let them abide by secular law: Give unto Caesar.

    If they don’t, then let them do their word-processing back in the scriptorium.

  3. John says:

    A question. Under Smith would it have been constitutional during Prohibition to not include a religious exemption – to, that is, ban sale of wine for sacramental purposes?

    It seems like it would have been, doesn’t it? It seems reasonable to argue that Smith gives much too much latitude to the government to inhibit free exercise.

    But objecting to this particular regulation is ridiculous.

    • Tybalt says:

      “It seems reasonable to argue that Smith gives much too much latitude to the government to inhibit free exercise.”

      It is reasonable to argue this… Harry Blackmun thought so, joined by Brennan and Thurgood Marshall (Sandra Day O’Connor arguably may have thought so as well – at least, she thought it was too much latitude).

      However, I am confident, speaking as a realist, that Scalia would not apply Oregon v. Smith against the Catholic Church in any context whatsoever.

      • UberMitch says:

        Scalia gave a talk at my law school followed by a Q&A, and he was directly asked the prohibition-with-no-exception-for-sacramental-wine question. He said (exact words escape me) that he would hold the law constitutional, and then try to overthrow the government that passed it. Talk is cheap and all, but that’s at least what he says.

    • R Johnston says:

      That’s pretty much the exact most narrow possible reading of Smith. There is no need to give a religious exemption for laws proscribing intoxicants.

      • Hob says:

        I don’t understand – I thought that was exactly, literally, what Smith was about. Wasn’t the law changed to grant an exemption for peyote specifically in response to that decision?

        • DrDick says:

          The ruling holds that there is no need to do so, but does not prohibit the state from doing so. I am also not sure which law you are referring to here. Smith ran afoul of a Washington state law prohibiting substance abuse councilors from using illegal drugs (which includes peyote). Federal law has always exempted sacramental use of peyote by the Native American Church from the federal prohibition (in large part owing to the efforts of anthropologists).

  4. So they have to put up with it for the same reason Quakers still have to fund wars. How alarmingly sensible.

  5. efgoldman says:

    Your assumption is that Scalia, having once written a logical opinion supporting a government position that happened to infringe as an unintended consequence, would not later twist himself into a legal and illogical pretzel to go out of his way to support the red beanie brigade.
    That presumes a certain level of consistency, logic, and integrity.
    Do you have any evidence that such a level exists?

    • efgoldman says:

      Shorter me: Any justice who is capable of writing that innocence is no bar to execution, is perfectly capable of deciding that a red beanie can make black letter law.

    • Uncle Kvetch says:

      What efgoldman said.

    • DrDick says:

      Indeed. Smith, after all, only applied to those drug-crazed, filthy savages and not bonafide civilized Christians.

      • L2P says:

        Not really. Scalia wrote the opinion. If he thought the hippiness of the peyote users was important, he wouldn’t have any shame about saying it. Smith is VERY clear about applying to all religions as it’s written, and since Scalia wrote it I think we can be pretty confident that he’s going to stick with it.

        I think Scalia has zero interest in letting every knucklehead who can think up a religious doctrine get an argument for a get-out-of-jail-free card.

        • Slocum says:

          Scalia is a right-wing Catholic. They own him. (I will be happy to be proven wrong.)

          • L2P says:

            I guess we’ll see. But this would be a case of epic hair-splitting if Scalia wouldn’t simply follow Smith and find the rules constitutional. I don’t see Scalia following that path.

            • efgoldman says:

              Have you evidence, or just logic, to say that Scalia wouldn’t support the red beanies vs. the Constitution if push came to shove?

        • DrDick says:

          FWIW Smith is an Indian and a member of the Native American Church. Scalia has not been terribly concerned about the religions of Native Americans or Haitians and Afro-Cubans. I think you give him too much credit for intellectual integrity.

          • L2P says:

            Possibly.

            But he’s been very consistent on this issue; the government can smack down anybody it wants regardless of its impact on religion, so long as it’s using a law of general application without evidence of discriminatory intent. Indianness and hippiness hasn’t been that important to his decisions or his statements.

            • Scott Lemieux says:

              When anti-SSM evangelicals argued that making the names on petitions public violated their First Amendment rights not to be criticized, Scalia not merely disagreed but wrote a concurrence making fun of their arguments.

    • Joe says:

      He followed the path here in Boerne, which involved a local law that blocked expansion of a church. He also doesn’t (as some do) argue that abortion can’t be legal, since it kills “people” but that the state can allow it if it could. And, one more than one issue, including flag burning, he did not vote with the “red beanie” brigade.

    • L2P says:

      Scalia quite literally believes that the government, so long as it isn’t singling out the Catholic church, could prohibit all use of alcohol. This is pretty central to the Catholic religion, since you can’t have full communion without it. So here you have Scalia saying the First Amendment allows the government to prohibit something that is essentially a central tenet of a religion.

      Why would somebody who things the First Amendment doesn’t protect religious freedom from that sort of intrusion be offended by making religious employers sign up for an insurance plan?

  6. david mizner says:

    Republicans don’t bother with polls anymore. They just feel that they’re right. The silent majority is so silent they don’t register in polls, which probably have an anti-Christian bias anyway.

    Of course, the persecution of religious institutions angle goes with the GOP’s attack on Obamacare — its claim that Obama is running an intrusive heavy-handed government, a claim it makes even as it reaches into women’s vaginas. It should absolutely thrill 30 percent of the population.

    Needless to say, the GOP is giving Obama a pass on his actually oppressive policies, like indefinite detention.

    • joe from Lowell says:

      Not putting people into indefinite detention is oppressive?

      • david mizner says:

        ?

        Signing a bill that codifies indefinite detention is oppressive. It’s amusing, as in the opposite of amusing, that you and other keeps denying that this bill authorizes indefinite detention.

        • david mizner says:

          And I wish I hadn’t put in that last point in my original comment — wasn’t necessary, and it only prompts you to run cover for your guy.

      • joe from Lowell says:

        I love the question mark.

        Pointing out the difference between “indefinite detention” and “not putting people into indefinite detention” gets a question mark.

        Not even a “No.” A question mark.

    • Anonymous says:

      Republicans do still like polls very much, as long as the results support their position. Then the polls are infallible. (See: lack of public support for gay marriage. Of course, with public support starting to turn in some states, such polls will become irrelevant. But only in those states where the public does support it – in other states the polls will still matter. Don’t ever expect Republicans to be consistent.)

    • Njorl says:

      Considering that Republicans supported, nearly unanimously, an indefinite detention bill which Obama threatened to veto, they would have a hard time making an issue of it. There is the additional problem that indefinite detention is very popular.

      I find it much more surprising that Republicans are not making an issue of Obama’s unwillingness to oppressively abuse indefitite detention powers.

      • david mizner says:

        For the nth time, his veto didn’t have to do with indefinite detention, it had to do with restrict executive power on detention on interrogation.

      • joe from Lowell says:

        I find it much more surprising that Republicans are not making an issue of Obama’s unwillingness to oppressively abuse indefitite detention powers.

        Especially since they did it for years. They dinged him for not putting the underpants bomber into military detention.

        Maybe the bin Laden operation, and the like, is dissuading his opponents.

        • Steve LaBonne says:

          Maybe the bin Laden operation, and the like, is dissuading his opponents.

          I don’t think there’s any question about that. They know how stupid they’ll look if they make a big deal of trying to paint Obama as soft on terrorism and he replies “Well, ask Osama bin Laden what he thinks. If you can find him at the bottom of the ocean.”

          • joe from Lowell says:

            Of course you are correct.

            What’s interesting to me is that two such very different questions as “Should we process captured terrorism suspects through civilian or military detention?” and “Is the military strategy for defeating al Qaeda effective?” are so mutually-dependent in the political discourse.

    • herr doktor bimler says:

      The silent majority is so silent they don’t register in polls

      Isn’t that pretty much the intent of the phrase “silent majority” as popularised by Nixon & Agnew? “Real Americans support our administration, i.e. the ones who are invisible in polls because they are too busy Americanising.”

  7. joe from Lowell says:

    If the mandate applied to religious institutions this might be a constitutional problem

    Could you discuss the distinction here a bit?

    How would applying this neutral law to religious institutions themselves not fall under Scalia’s “We have never held,” wrote Scalia, “that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate,” doctrine?

    • JLK1 says:

      I’m guessing it might harm the law’s chances of passing strict scrutiny, as it would make the law more vulnerable to arguments that it isn’t narrowly tailored. Closer call, but probably still constitutional even then.

    • Scott Lemieux says:

      The Supreme Court has made clear distinctions between religious institutions qua religious institutions and religious-affiliated secular institutions, most recently earlier this year.

      • joe from Lowell says:

        And so an individual is considered to be more like a “religiously-affiliated secular institution” like a hospital than like a “religious institution,” in terms of the applicability to regulations said to violate religious doctrine?

        • L2P says:

          It’s a little complicated. In Smith, the court was addressing the free exercise clause. The cases dealing with religious institutions also address the establishment clause. If you force a religious institution to do something the government is also establishing a certain type of religious practice. This usually (but not always) isn’t an issue when the government passes laws of general impact that don’t directly affect religious institutions.

          The CRA, for example, prohibits racial discrimination. I can’t discriminate at my business b/c of religious reasons, regardless of how heartfelt. The Free Exercise clause doesn’t overrule that law of general application. However, a church can have a religious practice that doesn’t allow white people to be pastors, and no one can use the CRA to force a change in that practice because of the Establishment Clause. The government can’t force that church to have white pastors.

          • rea says:

            Or more to the point, the CRA forbids religous discrimination in employment, but that does not mean the Baptists have to hire a Catholic pastor. It probably, though, means that they can’t insist on a Baptist janitor.

  8. David Kaib says:

    As usual, reverse their claim to get to the truth. When your employer seeks to decide things as fundamental as sex and reproduction on the basis of their religious beliefs, then your religious liberty is being violated (although not the 1st Amendment). And no, employers are not generally free to decide the terms of your employment without limit, as numerous longstanding laws limit this power-like the NLRA, FLSA,CRA, ADA, etc.

  9. Josh E. says:

    I like Whelan’s argument that any law that has any exceptions whatsoever cannot be a general law of neutral applicability.

  10. RhZ says:

    That’s a nice one-two combo, there. Good work, Scott.

  11. [...] Scott LeMieux says the “Constitutional” objections to Obama’s contraception coverage mandate don’t pass the laugh test: Republican politicians — led by Senate Minority Leader Mitch McConnell — and pundits alike have argued that the new regulations violate the Free Exercise clause of the First Amendment. But these arguments are specious. Nothing like the reading of the First Amendment invented to oppose the contraception coverage requirements has ever been adopted by the Supreme Court, for the obvious reason that it would be completely unworkable. Under existing law, a constitutional challenge to the contraception provision wouldn’t even rise to the level of being frivolous. In the 1990 case Oregon v. Smith, in an opinion written by that infamous radical leftist Antonin Scalia, the Supreme Court held that neutral, generally applicable laws are constitutional even if they incidentally burden religious practice. Only if a law intentionally targets a religious practice does it run afoul of the Free Exercise clause. “We have never held,” wrote Scalia, “that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” The requirement that insurance plans cover contraception is a valid secular objective that is not directed at any religious practice per se, and hence is plainly constitutional. If the mandate applied to religious institutions this might be a constitutional problem, but religious institutions themselves are excluded; only religiously-affiliated institutions that serve secular purposes and hire people of multiple faiths are affected. Share this:Email Filed Under: Federal, Politics · [...]

  12. Thers says:

    Bad news, Lemieux! The Althouse readers currently infesting my comments section assure me that the mandate totally does too violate the “very First Amendment.”

    So it looks like you’re out of luck.

    • mds says:

      The Althouse readers currently infesting my comments section assure me that the mandate totally does too violate the “very First Amendment.”

      Oh, now it makes sense. They’re using the secret original version of the Constitution that Nic Cage tracked down, in which the First Amendment is preceded by the Very First Amendment: “Any Reactionary pig shit horked out by mendacious or stupid right-wingers to justify stomping a fascist boot on everyone else’s neck shall be immune from all criticism, and shall carry the full weight of civil and Canon Law. Nothing else in this Constitution shall be taken to restrain this Amendment in any way. Suck it, Libs!”

      Many Rosicrucian constitutional scholars have pored over that last sentence in particular, seeking to divine why the Founders (all glory be to their exclusively fundamentalist Christian memories) wished librarians to suck on something, and what that something might be. The current favored theory is horehound drops, for throats made dry by extensive shushing.

      • Malaclypse says:

        Hogwash and balderdash! It is clear now that Skynet has sent a series of Romneybots back into the past, in order to insert the Very First Amendment “Corporations are people too.”

        Gaze upon the Uncanny Valley, and tell me that your heart does not tell you that I am right on this.

        • Bill Murray says:

          I think it was Sirius Cybernetics that did the back sending. They were first against the wall when the revolution came

    • Scott Lemieux says:

      But answer me this: VIEWPOINT DISCRIMINATION! That is the central point. /Mr.Althouse

    • joe from Lowell says:

      the “very First Amendment.”

      That is just special.

    • actor212 says:

      Yea? What do they have, a copy of the aborted Fetus First?

  13. Joe says:

    The Amish case you linked to is telling. It showed that a general benefit law could be upheld and that trying to grant exemptions in every case some religious employer finds a problem is not required under the Constitution. And, it did so before Oregon v. Smith made things easier for the government. There is was Social Security for the non-Amish, but the basic idea is the same.

    Five years ago, in Catholic Charities v. Serio, the NY Court of Appeals explained why this sort of thing didn’t violate the Constitution, even while offering some protection (quoting Prof. McConnell, Smith critic) under state law for free exercise when the law does not target religion in particular. It’s a good middle ground.

  14. Dave says:

    Does it never occur to people how very much like arguments over scriptural interpretation are arguments over what the SCOTUS meant when it said that the Constitution should be seen as meaning this or that?

    A normal country would just pass some friggin’ legislation, y’know.

    • Slocum says:

      Fuckin’ checks-n-balances, how do they work?

      • dave says:

        I don’t know. Judging by US experience, not very fuckin’ well, if on the one hand they can actively threaten a woman’s bodily autonomy in the second decade of the 21st century, but on the other can’t stop a President waging illegal wars.

    • David Kaib says:

      And after that legislation is passed, we’d argue over the meaning of those texts too. We’ll always argue over texts – that we do that in law and in religion isn’t very consequential.

      • efgoldman says:

        Jews understand this. Its called Talmudic discussion. Orthodox (really Orthodox) do it for most of Saturday afternoon. “How many angels can fit on the head of a pin” isn’t actual, but a good example.
        Nice to know the influence has found its way into sort-of (give GOBP leanings) secular society.

  15. Manju says:

    While writing his opinion on Peyote, Scalia made free-exercise claims more or less equal to free-speech ones. Those who prefer Sherbert would’ve likely made the Obama admin’s existing accommodations constitutionally required.

    Peyote probably feels great to liberals. But it has an effect on the establishment clause. Extra protection via free-exercise justifies lower protection when it comes to the use of state property.

    With Sherbert no longer being served, Scalia was making sure that the establishment clause could no longer be interpreted as a “wall of separation”.

    • joe from Lowell says:

      Extra protection via free-exercise justifies lower protection when it comes to the use of state property.

      I disagree. You’re forgetting that those “state property” cases always involve two competing claims, both of which are invoking their free-exercise rights.

      You have to balance the equation, old bean. Whatever you do to one side, you have to do to the other.

    • L2P says:

      I don’t think Smith involved anything except the Free Exercise clause.

    • Joe says:

      Sherbert is still “being served” under unemployment law & in certain other contexts (Wisconsin v. Yoder was not overruled).

      I don’t know what the “state property” point is. States have more control over their property and did before and after Smith. Smith also reduced free exercise claims that involved action. Peyote isn’t the only thing there & most libs don’t use the stuff. Pot is not protected.

      As to it being required, see U.S. v. Lee.

  16. Kurzleg says:

    OT, but I can’t help but think that the decision to make contraception coverage mandatory was a strategic one. (Maybe that’s pointing out the obvious.) The over-the-top response from the right – and the legislation they’ve crafted as part of that response – is making two things crystal clear. One is putting the lie to the notion that anti-abortion folks only oppose abortion and not sex out of wedlock. The other is to illustrate why something like national healthcare is a necessity since, if the right has its way, your employer can strictly limit the coverage of the health insurance they provide based on their personal “religious” beliefs. It’s not out of the realm of possibility that a govt-run system wouldn’t be susceptible to the same sorts of influence depending on who’s in the WH, but at least it would place the occupant and his/her party at the mercy of the electorate.

    • Kurzleg says:

      One is putting the lie to the notion that anti-abortion folks only oppose abortion and not sex out of wedlock.

      Maybe better phrasing would be “and not contraception generally.”

      • The Shaggy DA says:

        No, you were right the first time. They say things to the effect of “The little trollops need to deal with the consequences of their choices” far too often to believe otherwise.

    • joe from Lowell says:

      Just because the debate worked out really well for Obama’s side doesn’t mean this was the plan from the beginning.

      When you’re this right on a question, and your opponents are this wrong, and you’re not so bad in a pinch, good things can happen.

      • actor212 says:

        But your point doesn’t eliminate the possibility that there was a plan.

        I’m with Kurzleg on this: politics is too carefully a crafted game and Obama’s White House has shown some deftness in trapping opponents into positions that make them seem unreasonable and vicious (e.g. the debt ceiling debate, where he and Boehner worked out a pretty reasonable solution that got shot down hard in Congress, thus exposing Boehner’s flank but not Obama’s). It’s possible that they figured they might win a larger point about why aren’t insurance companies just flat out paying for contraception on their own?

        • Bill Murray says:

          But since the origin of the ACA rule was at the end of the Clinton administration and start of the Bush administration and the EEOC rules put forth at that time were more or less the original rules put forth here, so maybe the timing is planned, but following the extant Federal rules is the correct thing to do but not exactly the height of cunning.

  17. smarka says:

    There’s a fairly big error in your post, Scott.

    The Court struck down the RFRA only as it applied to state and local governments in Boerne. The Court has upheld it as applied to the federal government. So the Sherbert standard still applies to the contraception regulations.

    I think your arguments about why the contraception regulations survive under that standard are very convincing though.

    • Joe says:

      Scott was talking about constitutional arguments. RFRA is statutory. The regulations in effect have to meet the “RFRA standard,” since it is stricter than the constitutional one.

      • smarka says:

        Right, I understand that. People are wrong to say that the regulations are invalid. However, there is little practical difference between saying they are unconstitutional and saying that they are invalid under the RFRA. Under either scenario, a court would strike them down if they do not meet the standard.

        But Scott did say that the Court struck down the RFRA, and only discussed the stricter standard “for the sake of argument.” He’s not doing his argument any favors by failing to recognize the standard that applies.

        I do want to repeat too that I find his argument compelling.

        • Scott Lemieux says:

          I was addressing arguments that Obama was violating people’s “constitutional rights.” RFRA is not the relevant standard for that question.

  18. Slocum says:

    As I read the reasoning of Scalia’s decision, the contraceptives provision could include a requirement that all insurance programs under US jurisdiction cover contraceptives. A particular set of religious practices would only be incidentally affected by this because (a) there are non-religious reasons a person might *not* want to purchase such insurance, (b) many religions *are* ok with birth control, and (c)it is in the nature of an insurance scheme that those who obstain from some behaviors will end up paying the costs of those who do [e.g., non-smokers and smokers, respectively]. All of these are neutral: offering cancer coverage to smokers and non-smokers is not plausibly understood to be a promotion of smoking… mutatis mutandis with contraception.

    It looks like the guys in fancy robes are getting something for nothing. Well, not nothing: they have to go to the effort of throwing hissy fits about it.

    • Slocum says:

      Sorry, I was unclear. There should be a sentence after the first saying that religious institutions themselves should not be exempt from the provision given this reasoning. Also, the phrase “under US jurisdiction” does no work for the argument, so disregard.

  19. How serious is the anti-contraceptive lobby in the US? Is it an overt political standpoint, or is it just an undercurrent?

    • Murc says:

      That requires some unpacking.

      Contraception in general is amazingly popular in the US. But there’s a lobby against it which is VERY serious about it, deathly so. This lobby, owing to the general popularity of contraception, has tended to speak in code about it, so I suppose you’d classify it as ‘an undercurrent’ but as it feels like it has gained strength in the culture wars (or perhaps has become more desperate) it has begun transitioning to ‘overt political standpoint.’

  20. Tom says:

    Even more importantly, the regulation does not require any individual to use contraception contrary to their religious beliefs, or even to pay more so that they can be covered.

    I think this is important, and hasn’t been said enough. Some conservatives are acting like Obama is forcing people to use contraceptives in opposition to their religious beliefs. The right has really overplayed their hand on this one.

  21. [...] Scott Lemieux writes at Lawyers, Guns and Money, “a constitutional challenge to the contraception [...]

  22. [...] Specious Religious Freedom Argument Rejected [ 0 ] March 27, 2012 | Scott Lemieux var addthis_product = 'wpp-262'; var addthis_config = {"data_track_clickback":true,"data_track_addressbar":false};if (typeof(addthis_share) == "undefined"){ addthis_share = [];}Good. The point that “This case is about the limits of the government’s ability to delegate to a religious institution the right to use taxpayer money to impose its beliefs on others (who may or may not share them)” is particularly crucial. [...]

  23. [...] Organic Eden, the latest company that wants a special exemption from generally applicable laws, in order to diminish the freedom of its employees, based on a random variety of specious arguments. [...]

  24. [...] arguments against the requirement to cover contraceptives for employees are extremely weak even when it comes to religiously affiliated institutions. But if generally applicable laws are unconstitutional because they are inconsistent with the [...]

  25. [...] a “burden” on religious freedom this trivial is sufficient to render a law inapplicable legislating would be essentially impossible. When the argument is advanced by a secular, for profit corporation, the argument faces the [...]

  26. [...] these arguments should also be attractive to Scalia, given his preference for clear rules and his much-maligned but wise opinion in Smith. Unfortunately, the “principle” Scalia uses to decide cases dealing with the Affordable [...]

  27. [...] the free exercise problems are similar. I think Oregon v. Smith was correct, but even it forbids regulations of conduct that intentionally target religious practice, and I [...]

  28. [...] but based on current 1st Amendment law a challenge to the contraception coverage requirement would be frivolous, and properly [...]

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